In the case of the users of Kleargear.com, you agreed to a wonderful provision in their Terms and Conditions that bargained away your ability to publish negative reviews. Yes, they prohibit you from making any action that “negatively impacts” their business. Since this was reported in Mashable, it appears that they have changed them.

What is awesome about the story is that when the reviewer asked the review site, ripoffreport.com, to remove the post they were held up for an additional $2,000. At the tail end of this, Kleargear reported the delinquency to a credit reporting company. The TV station that is investigating this is reporting that you get charged $50 when you dispute a charge to Kleargear.

First off, as a consumer assistance pitch, I would recommend directing your attention to my friends at Thinkgeek.com, who treats their customers better than this alleged treatment. Apart from that, they are great and right in the same space as this offending website.

The contract also went so far as to assert an assignment obligation on the poster as to the copyright in the post. There was some question back when the lawsuit was filed as to whether the contract was even enforceable.

The patient had no bargaining ability. The customer of Kleargear had no bargaining ability. The law, at least with click-through agreements, has generally said that your ability to walk away from the deal is enough bargaining power.

The problem is that you want the stuff, they have the stuff, and you are right there. Just like a kid looking at a cake on the counter. Would they stop to read anything before diving into the cake? I don’t think so.

Stop fighting, please

Brands who fear their customers are like children in front of a failing dike. Every little leak requires a new finger. It is a losing fight. There is no way to get ahead. Trying to fight the flow of social is even worse.

There are so many wonderful websites out there. Ripoffreport is just one of the so-called sentiment aggregators. I say so-called, because if you go there they are aggregating bad sentiment. If you tried to monitor all of these sites for bad postings you would need to add full time staff. You can’t do it.

Even brands whose reputation is the gold standard have bad reviews sitting on those sites. Some are from alleged employees even. Some are from customers who were denied a claim because of their own doing. The reality is there is so much noise there that it is hard to get to the signal. I don’t know many consumers that turn to those sites as a primary source.

Trust consumers, and avoid the Streisand Effect

Remember the Streisand Effect? When she objected to pictures of her estate being posted online she tried to get them removed. The publicity surrounding her actions increased the visibility to those pictures and ensured that they were seen by so many more people. The wikipedia page for “The Streisand Effect” even has a nice picture of the estate.

I think Kleargear is in much the same situation. I had never heard of these folks. Actually never had the need to go anywhere but to my friends at ThinkGeek.com. Now that I know they are out there, I doubt I will ever frequent their site. I think all the readers of the Mashable article will come to the same conclusion. Since I am not a Kkeargear customer I can say all sorts of bad things about them.

At the end of the day, riding this social media wave requires going with the flow and taking the bad with the good. If you are getting a flood of negative reviews look at why you are getting them. That is where the bigger problem is. Stop trying to band-aid the wound. Figure out why you are bleeding. It is harder, but so much more efficient.

Generally when you talk to someone about the notion of privacy on social media you get one of two reactions. Either you get “well there is no privacy there, so it’s all public, right.” Or, you get “I am so creeped out by what people are doing with it.” I probably have a combination of those two thoughts running around my head. In psychology circles this is known as cognitive dissonance.

There is no expectation of privacy in social, just not for the reasons you think

First of all, this notion of privacy expectations is really against governmental intrusion. The idea that you have no expectation of privacy is related generally to searches and the like. That is the reason why you get articles like “you have no expectation of privacy to your mobile location.” With private entities, there is no such thing.

That being said, you did post in a public setting. Saying something on Twitter is no different than posting it on a wall in the town square. The problem is when you think it is not. Perhaps you thought your direct message was private, or your wall settings were set so that only your friends saw it. In either case, you think it is one thing. Than it possibly turns out to be different. That is where it gets hard.

It just feels wrong what people do, and it might hurt

What happens when your healthcare provider looks up your social media postings to make a determination as to your suitability for a treatment. You were on the transplant list and then you said something, or perhaps a friend said it, and all of a sudden you are not.

If you think this is far-fetched, I direct your attention to this article from last week. Your providers are wrestling with this. Much like employers are wrestling with the notion of looking at it. Right now neither have a duty to look. I am waiting for the day when the courts create such a duty.

Social media as primary research?

I think there is a balancing that can be made here which will allow well-meaning and well-intentioned searching. The problem is that most of these examples of creepy social media searching and privacy expectations seem to be centered around using social media as a primary source.

If you look at postings and deny someone because a post has them still drinking after being on the transplant list, that is what I call using it as primary research. With no verification, I think you are wrong. If you used it as the impetus to ask again, or to check (say with a blood test), I think that is ok.

The problem with social media as a primary source is that it is unreliable. Was the post something I said? Was it something someone else said? Is it a picture of me appearing to drink a beer? You have no ability to verify. You can ask, and perhaps research even more. That is called due diligence.

I also think this is no different from seeing someone at a bar when you are out on your own. In that way, social media is no different than the real world. If the provider sees a patient out in public and asks questions based on that, that is ok, isn’t it. I would expect providers over the years to have been doing this. In small villages in days of yore didn’t the local doctor use their own powers of observation to provide care? Social media is just the village of today.

The village is larger today

The reality with social and the internet is that the world has shrunk on us. Today, you are as connected to someone halfway across the globe as you were to your distant neighbor in your small agricultural village. The connections to each other are so much easier to make, and the information is so much more permanent.

The flip side of this is that now we choose to be connected to people around us. We have moved from tribes of chance to tribes of choice. The downside is that all of our tribes of chance are talking to each other. I think while we have all been open to sharing, I wonder if there will ever be a backlash where people share less because of what they perceive as intrusive.

You may think you understand copyright law enough because you have never gotten a cease and desist letter, but beware the pitfalls of your fair use misconceptions. Copyrights, like all intellectual property, are protected to further the good of society. They give to creators some limited right in time, and at the end everyone gets the benefit. I don’t know whether there is a general lack of respect when it comes to creative works, or a lack of understanding, but it seems that people don’t understand enough of the law.

I will start with the bottom line. If you use anything that you think was created by someone else, you need to carefully consider what you are doing. The greater the use, the greater the risk. The greater the exposure, the greater the risk. At the end of the day, you need to have a caring and understanding lawyer on your side to help educate you and counsel you. Why?

My personal opinion is that most creatives form their understanding of copyright law during their education. In an educational setting, the defenses to copyright infringement are pretty good. They transfer that to the work place and then we get all sorts of trouble.

Mistakes will hurt a lot

Being respectful of others creations will generally help you steer clear of problems. When the problems do occur, being respectful can help you avoid costly litigation. Litigation in this area can be very costly, and even the costs of making a nuisance lawsuit go away are significant. Making a mistake will cost you.

Everyone thinks that what they do is fair use. I came across a nice table which lists ten common misconceptions about fair use defenses. The great part about the table is that every answer on the right hand column is no. Everything you have ever said to a lawyer, or you have heard from a client, is in that table. The first one is the best. “Anything on the internet may be freely copied or used …” That is so precious. How often have you heard that as a lawyer? How often have you said that when questioned about use.

Other highlights in client-speak

“But I gave credit to the author.” That’s really nice. So thoughtful. It makes it so much easier for me to prove willful infringement. Not only did you copy the work, you know who you copied it from. Thank you for making my case. However, depending on the license they attached to it, that might be enough, but that is their choice not yours. NEXT!

“It didn’t have a copyright symbol on it.” Depending on when you learned your copyright law, this may have been true. It is no longer true. Not since 1989. I don’t need to put a mark on it at all. All I need to do is fix the work in a tangible medium. The internet is a tangible medium. NEXT!

“Fair use has four things to it, how hard can it be.” I can’t tell you something is fair use. Your lawyer can’t tell you. You can’t tell yourself. Fair use is only a defense and it is only an argument. The only person who can say whether the use is fair or not is a judge. Feel free to take your use to court. Your lawyer’s fees may far outstrip the value of your campaign.

“It’s just an educational presentation to the team.” Let me pat you on the head for helping your employees develop professionally. Then let me wrap you on your knuckles a little. If you work for a company that makes a profit, your use is commercial. Everything you do is commercial. Even that presentation you gave to two people in the basement conference room is commercial.

“I got it from YouTube, they let me use it wherever I want.” Wrong, wrong, and so wrong! Look at the terms of the site. By they way have you noticed how hard it is to get a YouTube video out of the website and use it offline? That should be some indication that you shouldn’t do it.

It’s safer to get permission, and cheaper than saying you’re sorry

If you are a brand and using someone else’s creations, get their permission. Go ask them. Yes, they may want some money. They may actually want to give it to you for free for the few minutes of fame. Depending on your use, think about drafting something more formal than an email. For instance, if you are taking someone’s picture and placing it in a national print ad, I would suggest formalizing the agreement.

Even in the case of user-generated content portals where you can control the licenses ahead of time, I would suggest you consider getting agreements for further use. Again, it depends on the use. Taking someone’s picture off a review and putting it in an internal presentation is a simple thing. Rely on the terms you already have in place. However, national campaigns may be a different beast. Also be aware of anyone else’s rights to the image or things in the image.

Using content is infringement, plain and simple

Even if you get fair use right, you need to prove it. It doesn’t take away the infringement. Remember that. You are still stealing their stuff. It’s just that the law allows you to.

Respect your users

If you start from a position of respect for people’s creations, you will do right by them. It will also make your lawyer’s job that much easier. Educating yourself about areas of the law that impact your creative work is not just about finding the one section that allows you to do what you want. It is about understanding how creations are protected.

If you think you have a problem, turn the table around. If your company created the content and a competitor used it would you feel harmed? If the answer, is yes, you have a problem that you need to address. Go address it.

Having a social media policy is a bit of a gamble. Don’t push your chips in, just yet!

Social Media policies, just say no! That has been a recurring theme in these parts. There are very real concerns and risks with employees engaging on social media when they talk about the company they work for. I do not discount that or minimize that. The problem is that policies are not the way to do that , in my mind. A policy is all about negative control. You can’t do this, you can’t do that. In the era of engagement and empowerment, a policy (even the most well crafted one) runs against everything this new age is about.

There are more concrete reasons why I think a policy is the wrong thing to do:

The NLRB has made it exceedingly hard to draft one that passes muster, in part or in whole. Even when your social media policy is not the focus of an investigation, it may still get looked at. Why even court this scrutiny?

Everything you seek to prevent through your policy is already being prevented in other policies. Confidential Information? If you don’t have some policy about protecting that, you are already in trouble. Speaking on behalf of your company? I bet you have a publicity clause somewhere in your employee handbook.

Policies are about termination evidence. Ask yourself honestly if you are going to terminate someone for something that occurs only in social media that doesn’t implicate any other policy. After you spend some time working that through in your head come back here and look at a different way to do this.

The one exception may be disclosure/endorsement guidelines. But craft a realistic scenario where an employee does the wrong thing here and causes grave harm. A single employee, I mean. If you have many, many employees not disclosing properly to the point that the FTC steps in, you have a bigger problem than terminating an employee.

I think the answer are guidelines and expectations with regards to employee social media activity. Guidelines is probably a bad word too. Principles might work. I would have some saving language in there that distances this document from your true employment policies.

These are very general thoughts about what it should look like. Your company may require some different things, or your industry may require very formal rules. FINRA firms, I’m looking at you. That being said, since you aren’t going to discipline anyone based on these guidelines, perhaps just addressing these things will be enough.

Remember that the core problems posed by social media are nothing new. The telegraph made it easier to send information along the wire. The phone then made it even easier. While the friction decreased, the things you are protecting are not. Your proprietary information and your reputation are the things that you have always been worried about. Since the appearance of the employer-employee relationship we have developed ways of doing it. Apply those ways now and stop trying to think your problems are so different.

1. Acknowledge and accept the reality of social media, and define it

This is your introduction into the meat. It communicates the space you are talking about. It also lays out for your folks what you are not talking about. While I think social media guidelines are great thoughts about employee speech in all areas, don’t try to be over-expansive. You will sound like Big Brother from 1984.

I am not a classically trained writer, but I believe you need to give some sort of potential payoff to the reader here. You need to get them to read the rest of the document.

2. Communicate the purpose

If you agree with me that the purpose of this document is to help your employees protect themselves, this is where you tell them that. A quick statement about the risks they face speaking in this space may be enough. More than that and you start sounding like a policy.

3. Tell them what they can do

I find it useful to break employee speech down on ‘about’ and ‘for’ lines. Allowing speech about the brand, but controlling speech for the brand gives your employees latitude to do what is natural for them. Engaged employees want to talk about your company, whether it be over the checkout line at the supermarket or on their Facebook wall.

That last sentence is the reason why I feel the way I do about employee social media policies. Your employees have been doing all of this already. The only thing social media changed is your ability to print it out and use it as a hammer. To be fair, it has also reduced the friction by which your employees share things you don’t want them to share. Let’s be honest here, as we are among friends. If you are now worried about your employee saying something questionable on Facebook today, you should have been worried about them saying the same darn thing twenty years ago on the phone. Stop treating this space so differently, like it should have new rules.

4. Disclosure and Endorsement

This is the only ‘legal’ part of your guidelines. You need to inform your employees about how to convey their ‘about’ speech. This is the ‘I work for the company that makes the widget that I like so much’ part of the discussion. There is personal liability to them if they do not, but there is also corporate liability if you don’t have this type of statement somewhere.

5. What they should expect from you

Here is where you need a good writer to come in. This is where you tell them that this is not a policy and does not carry with it disciplinary possibilities. Though you also tell them that their conduct is governed by all the other things you have in place. Highlighting things like protecting intellectual property (yours and others), and promoting a healthy workplace.

6. Provide a resources section

Give them links to places where they can learn more about social. Maybe even links to pages where they can sign up for their own accounts. Also give contact information for people they can talk to about it. Perhaps even a regular user group meeting where people can talk about real-world questions. Supporting your employees here leads to a bonus section –

7. Bonus – Use the Technology, Staff Up and Strap In

You need to have a group of folks standing by to manage questions and comments. Use social technologies to build out a platform where this conversation can occur easily. I think this helps with the staffing problem as well. If you build that community right, I think you will be able to support even a large employee base of highly engaged employees with very little staff.

When I say strap in I mean that what happens will surprise and delight you almost every day. Sometimes those surprises will not be pleasant. Learn your lessons, course-correct your employees and weather the storm. Don’t try to control, guide. The more you try to control the more you will not be able to.

Is your Facebook account worth $100 to you? Probably, but have you really thought about it?

Nothing in life is ever free, even free accounts in social media platforms and email platforms. We always dismiss those that tell us to beware of things that are too good to be true. We like things to be too good to be true. When Facebook hit the scene, we all flocked to the site. The opportunity to connect with friends, new and old, and hear about the new developments in their life was almost too much for many of us. What you did get over time was sponsored stories, targeted advertising and custom audiences. All ways for Facebook to make money.

Every company is in business for one thing generally – to make money. Money is the driver of all things. It keeps us clothed, fed and sheltered. For companies it helps them make payroll, pay for raw materials, etc. For publicly traded companies, the money that they make supports the share price, which shareholders want to ever increase. Do something that hurts your share price and face a shareholder lawsuit, however frivolous it may be.

Do you agree with me that Facebook, Twitter and LinkedIn are in it for the money and not for some global good motive?

What are you worth to them?

There are a few methods of valuing your presence on these platforms. Most of them are hard and require very detailed knowledge of internal proprietary systems and processes. If a platform is driven by advertising revenue, you represent a certain amount of revenue to them every year as you are one of those impressions they sell and charge for in their cost per impression calculation.

Here is the more interesting question for you. Does the value of your access equal the value of you to them. $100 is an interesting number to throw around and is great for headlines. For each user personally there is a different calculation. How much information do you share of yourself on these platforms? Your social graph, your birthday, your relationship status, textual updates about your life, photos of you and your friends, your travel history and the like all are bits of information that increase (potentially) your value to the platform.

Interestingly, the argument goes, the more information you share the more valuable the platform is to you. Your engagement goes up, your connection with your network goes up. The nice thing about George’s calculation is that it doesn’t matter how engaged each user is. So for the new ‘active’ user the value is about $100. For the established, and well-engaged, ‘active’ user the value is about $100.

If this was truly the case as it relates to the bottom line, there would be no incentive for the platform to try to engage you any more. You would be worth what you are worth. That is the problem with simple calculations. Great for headlines, less great for true individual analysis.

Evaluating your own engagement and worth

Each user has to look at their own activity and see if it is worth it. If you are required to give your email address to a game to play, what are you giving up, and what are you getting. A few hours of enjoyment may be enough to justify some marketing email (spam seemed too harsh a word).

The issue that all privacy advocates are talking about is that while the user may be good at evaluating the instant value exchange, they are less good at evaluating the future cost. Your email is taken, you play your game, and two months later it is included in a custom audience campaign on Facebook. Perhaps then your social graph gets exposed as you click on something there based on that. I call this lack of downstream control.

It’s not that users don’t care, we don’t give them the opportunity to

We get studies like I highlighted last week that seem to stand for the proposition that users don’t care. They don’t read agreements. They don’t understand agreements. I cry foul on the conclusion that they don’t care. The brands don’t allow them to care.

Brands don’t care about whether you understand. They only care that they checked the box that they gave you the information, no matter how complicated the form. If the average level of education in the US is grade 12, and the reading comprehension required to understand a privacy statement is grade 12, that means that roughly half are not educated enough to understand. (Note: I know that median, not average, means half above and half below, but I said roughly, so please put your reverse polar calculators down)

Make your assumptions and move on

As a user, I think you should assume that everything you share will be made public, either directly or indirectly. Assume that and then evaluate whether you are getting value for yourself. If you are, go about your day. If not, perhaps think again. Protect thyself. Or as they said on The Brady Bunch, caveat emptor (buyer beware).

Your personal information is under a privacy assault every day, from yourself. I have long-held that most people would give up a treasure trove of information if they got something valuable in return. The key is what is that value. A recent study by the Informations Systems Audit and Control Association (ISACA) highlighted by a PC World article show that my feelings don’t marry up with that, while there is a large percentage of their respondents would accept the trade-off.

I just wanted to point out some things in this survey that make me wonder who does these things (surveyors, I mean) as well as some thoughts about some of the other insights from it. I actually read the survey that was linked and can not find any of the data that they cite in the article, though. No matter, I have some thoughts, anyway.

Unsolicited text messages are too costly

Only half of the respondents, according to the survey, would find it invasive if a store sent them a text message with a special offer as they walked past the product. Here is the problem. Every one of those text messages they send out may carry with it a $2,500 price tag for the retailer. Remember, remember the 16th of October, when the TCPA changed? I doubt any of these people have given their unambiguous written consent to this text message. For more thoughts on that, go read my post from August.

Remember what I also said about ways to get around this restriction. If I have the Target app on my mobile, there is nothing wrong with Target sending a push notification to the app with just that information. I wonder how such a process was presented to the consumer, but it is totally outside the restrictions of the TCPA.

The article points out that half of respondents do not read privacy policies. The actual percentage from ISACA is 43% and comes from the 2012 Geolocation Use and Concerns Survey. It is even worse than reported in the PC World article as an additional 25% feel that the licenses and policies are not clear. So that is a whopping 68% (over two-thirds) that don’t have any clear knowledge about what they just agreed to.

What I really love from the 2012 survey is that while 68% don’t have a clear understanding of what they are agreeing to, 54% think the risks and benefits are appropriately balanced. How does that math work. How does one make a proper balancing between risk and benefit when they don’t understand what they are agreeing to?

I admit to being a bit Pollyanna about this thinking that I can make the user read these notices. I think most users will just pass through without nary a thought. But as a brand, I would fall back on the “you had to go through that window” if my data collection was challenged with regards to notice.

Focus on the users

I will always come back to my three-legged stool – value, notice and control. Give good value for the information you collect; give the opportunity for the user to read and understand what they are agreeing to; and for downstream, or unintended uses, give the user some control over things they never agreed to.

My fear is that there is coming a time when there will be a paradigm shift in attitudes about things like this. If consumers and advocacy groups don’t demand brands do the right thing now, we will give up the ability. At some point in the future, the argument will be, “why do you care now, all your information is available to us anyway. There is no more harm.”

I realize that privacy protection is a hard thing. Most of us can not even agree what privacy as a concept really is. Take off your hat as a brand and think like a consumer (or maybe try to think like someone in your family) and evaluate how they will receive what you are doing. That is the only way to get this right. If you do get it wrong, apologize like a human.

What is relevant to one, won’t be relevant to all. Big data solves that, right? Maybe it just makes more problems.

One of the cornerstones of an effective SoLoMo implementation is relevance to the individual consumer, and one way to get this is through the use of data analytics (particularly big data). A part of this may be location relevance (don’t serve me an offer for a downtown restaurant when I am driving around the suburbs). Another part of this is personal relevance (don’t give me an offer for maternity clothiers if I am a single 19 year old male in college). The rub for most brands is how to achieve this. Enter Big Data.

NOTE: I am feeling very under the weather today, hence I missed a post yesterday, but wanted to get something out today. This is a reprint from my post on 5-10. Please accept my apologies and read on.

Your first concern in this area should be your data collection and sourcing practices. Do you buy behavior tracking data from analytics providers? Do you track your user’s behavior off your site? What about their purchasing decisions in your stores and on your site? It’s all available to you.

How do you explain all this to your customer so you avoid that creepy-line that I always talk about? Like most privacy type discussions I think you start at the end (and future-proof as well) and work backwards. Ask what you want to do and determine what data you need to support that. If you want to provide timely advice to the homeowner regarding home maintenance items such as furnace filters, you need a few pieces of information. You need to know what size the homeowner has, when they last replaced it, that they are in your store and communicate with their payment provider regarding any offers. When you make that offer, I would also recommend putting some sort of modal bubble up which explains all that data behind the offer.

Using Big Data does run up against the creepy-line, or Big Brother as the post title suggests, for some consumers. I think intuitively that this is a probably demographic break, but I also think that this is a break along technology users and non-users. Another digital divide, if you will. For those of us (even those who are a bit older) who regularly use technology we are probably a bit more open to data gathering.

Incorporate privacy by design principles

It is incredibly important as you go along these journeys to have knowledgeable and experienced privacy professionals there with you. Do not leave this up to your development teams or your technologists. Not because they want to do nefarious things with the data, but because they are too close to the problem. Ask most developers if they think it would be cool to do things like this, and most of the time you will get a yes.

This also includes looking at all the downstream uses of this analysis. Are you going to sell it? Are you going to put a line in the sand that “none shall pass?” You need to document what you are doing with each project in these areas and have consistency. That’s where your privacy team or your consumer ombudsmen comes in. They can watch over a myriad of projects and see how they all come together.

Walk a mile in their shoes

I think there is a recurring theme around SoLoMo emerging here. Put yourself in the shoes of your customers, fans, etc. Look at it from their perspective, and look at it critically. Just because you think it would be great to ping your fan when their gas tank is nearly empty with an offer for cheaper gas, is your user base ready for it.